The First Amendment According to Newt Gingrich

In one of September’s Republican primary debates, a CNN narrator’s voiceover introduced each of the eight candidates as they came on stage with a simple, reductive tag-line. Mitt Romney was “The Front Runner”; Rick Perry, “The Newcomer”; Herman Cain, of course, “The Businessman.” CNN’s over-production of its TV debates this election season is just one glaring example of the news media’s dogged efforts to impose a digestible narrative structure on the process. Over-reliance on such journalistic crutches, however, can blur the line between reality and rhetoric, and nowhere is that danger more evident this year than in the case of Newt Gingrich.

At that same debate, Gingrich took the stage as the narrator dubbed him the “Big Thinker.” It is a label he has gleefully embraced all election season long, and it has been picked up—often without any sense of irony—by myriad news outlets. When Gingrich engaged in his “Lincoln-Douglas style” debate with Herman Cain in October, for instance, the write-ups jumped on the contrast between Cain the political neophyte and Newt Gingrich the Ideas Man. TheAtlantic called Gingrich the “wonk-in-chief”; the Washington Post noted that he had displayed his “professorial bent” and speculated that a Gingrich White House could be a veritable “Ideas Factory.” The problem with the Big Thinker label, however, is that it gives Gingrich credit for his supposed intellectual heft while hardly ever subjecting the contents of his ideas to the kind of scrutiny they deserve. It allows a candidate as fundamentally conservative as his less intellectually pretentious rivals to hide his radicalism behind a veneer of respectability. Now that Gingrich’s meteoric rise in the Republican polls has made him a plausible candidate, it is more important than ever to take him, and his ideas, seriously.

One of the most consistent themes of Gingrich’s rhetoric has been his condemnation of the “liberal secularist” agenda and its perversion of the proper role of religion in American public life as envisioned by the religion clauses of the First Amendment. Of course, conservative crusades against liberals and the judicial system as being anti-religious are nothing new. Gingrich’s stance is particularly insidious, however, because it purports to be a historically-rooted Constitutional theory—and because Gingrich, more than any other serious Republican candidate in recent memory, is so widely credited with “intellectual” credentials.

Gingrich laid out his First Amendment theory quite extensively in the most recent of his seemingly endless stream of policy books, 2010’s To Save America: Stopping Obama’s Secular Socialist Machine. In it, he sketches a picture of American moral decline driven by a deep-set liberal conspiracy to pervert national values: “Rejecting American traditions of hard work, self-sufficiency, and honesty, [liberals] encourage Americans to learn how to game the system through the intervention of an activist government–sucking the maximum resources possible out of taxpayers while contributing the minimum.” Central to his narrative is the conviction that the liberal campaign to “drive God from the public square” is not only a sign of cultural downfall, but a perversion of the Founding Fathers’ vision as embodied in the Constitution.

The Founders, asserts Gingrich, were anxious to ensure that religion had a central place in American public life. Reasoning from their many statements extolling the importance of religion in instilling virtue in a society, and from the acknowledgments of the Creator in the Declaration of Independence, Gingrich extols the Free Exercise Clause as an express counterweight to the Establishment Clause—and as the embodiment of the Founders’ belief that “the maintenance of liberty requires virtue.” The separation of church and state, then—the origins of which he pillories as being derived from a misinterpretation of Jefferson’s famous letter to the Danbury Baptists—is a false ideal. The founding generation envisioned government patronage of a public role for religion, limited by the Establishment Clause only to the extent that public observance could be neither coercive nor discriminatory among denominations.

In Gingrich’s narrative of modern American history, this tradition of accommodation of religion has been subverted by a conspiracy whose express aim is to banish religion to the very margins of national life, driving “God and morality to one hour a week in Church, Synagogue, Mosque, or Temple, but to preserve the other 167 hours a week for secularism.” He lays the blame for this conspiracy at the feet of many forces, including Hollywood and Big Labor—and, inevitably, “Barack Obama and Nancy Pelosi”—but ultimately declares that the prime mover in the war on religion has been the judiciary, with its abuse of the proper historical understanding of the Establishment Clause. He dates the beginning of this jurisprudential assault on values back to the early 1960s—specifically the Supreme Court’s decisions in Engel v. Vitale (1962) and Abingdon School District v. Schempp(1963) striking down school-sponsored prayer in public schools. Gingrich attributes a stunning variety of national moral problems to the legacy of the school-prayer decisions: from “drug addiction,” “teenage pregnancy,” and “assaults on teachers” to even more general ills such as “violence” and “disrespectful attitudes.” As he detailed in To Save America and has continued to emphasize in many speeches, Gingrich believes that school prayer is just the beginning: judges have used the Establishment Clause as a club with which to beat back the public religious observances of teachers, students, government officials, private organizations, and ordinary citizens. As particularly egregious examples of this backsliding, he lists three recent cases: the Boy Scouts being prevented from using federal land for a campout “because of their religious views,” the ACLU suing to remove a World War I memorial cross from public land in the Mojave Desert, and the 9th Circuit decision questioning the use of “Under God” in the Pledge of Allegiance. All this derives, he insists, from a fundamentally flawed liberal understanding of the First Amendment—a “bed of lies that has obscured our understanding of the ‘separation of church and state and ‘religious freedom.’”

Gingrich has made the assault on “secular socialism” a centerpiece of his 21st-Century political identity, and he has linked it to a broader body of rhetoric assailing activist, unelected judges as threats to the integrity of American democracy. The argument finds resonance, it seems, with the evangelical base of the Republican Party, for whom belief that the nation’s Christian majority is suffering cultural persecution (with the “War on Christmas” being only the most prominent example) has long since become an article of faith. When subjected to any serious scrutiny, however, the folly of the argument is glaringly apparent. It proceeds from deeply questionable assumptions about the original intent of the religion clauses, and more importantly it displays an almost fantastic misrepresentation of how the Court’s recent Establishment Clause jurisprudence engages with that tradition.

To support his preferred interpretation of the original meaning of the Establishment Clause, Gingrich cherry-picks quotations from the founders indicating their belief that religious belief is good for society as a whole. George Washington: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensible supports”; Thomas Jefferson: “The interests of society require the observation of those moral precepts…in which all religions agree.” Establishing that Washington, Jefferson, and Adams—like nearly all American public figures, deists included—believed that religion had social value hardly proves that the Establishment Clause intended no separation of church and state. Even assuming the validity of that premise, though, Gingrich himself concedes that the Clause must have some restrictive power. He points out that even Jefferson and Madison were content to attend ceremonial religious services at the US Capitol, and he extrapolates from that a view that even the most progressive framers of the Constitution had no objections to government acknowledgment of religion that was non-coercive and endorsed no one sect over another.

The only kernel of truth in Gingrich’s indictment of the current Court’s rampant “liberalism” on Establishment Clause questions is that the preferred interpretations of its most conservative members have never achieved majority status. Justice Thomas’s view that the Clause doesn’t even apply to state governments remains a relatively lonely one. The strongest mainstream conservative view, summarized by Justice Scalia’s dissent in McCreary County v. ACLU of Kentuckyas the proposition that the Constitution “does not mandate governmental neutrality between religion and irreligion,” has likewise never commanded five votes on the modern court.

Nonetheless, the early 21st Century Supreme Court is hardly waging a concerted assault on religious values. In fact, and as it has on so many other fronts, it has beaten a distinct—if haphazard—retreat from the vigorous separationism of the mid-century Court. On the issue of government subsidies to religious schools, the Court has issued several recent decisions, including 2002’s Zelman v. Simmons-Harris, which seem to depart from earlier orthodoxy holding that “no tax, large or small,” could contribute to religious education. Although it has occasionally literally “chased religion from the public square” by striking down public nativity displays at Christmas, it has also displayed solicitude for less sectarian displays of religious sentiment, or for commemorations of the “historical” value of religious texts like the Ten Commandments (Van Orden v. Perry, 2005). In recognizing the legitimacy of invocations of what it has called our “civic religion” or “ceremonial deism” on public occasions, the Court has nonetheless required, at a minimum, that the setting be free of coercion. Although the majority’s decisions in such cases as Lee v. Weisman(1992) and Santa Fe Independent School District v. Doe (2000) that school settings involve a higher risk of coercion has not set well with conservative members who prefer a more literalist definition of “coercion,” the general principle is a familiar one—the Court has no more intention of banishing God from our national discourse than did Jefferson or Madison. It is also a principle Gingrich should recognize; it is not too far from the non-coercion, non-endorsement accomodationist norm he so lauded in the practices of the Founders. Indeed, the Supreme Court may be vulnerable to criticism for watering down the Establishment Clause, or for a Free Exercise jurisprudence which has been unduly burdensome on minority sects. It may even be that the Court’s doctrine on the whole subject is hopelessly muddled and confused, as Justice Thomas recently alleged. A “secular socialist” conspiracy, however, there is not.

It is almost certainly a mistake to analyze Gingrich’s claims in good faith. At bottom, he represents only one of the most articulate figureheads of a movement which in the last generation has reaped tremendous victories from an increasingly conservative Supreme Court even while it continues to score political points engaging in a crusade against a phantom “activist judiciary.” On the subject of the First Amendment Gingrich trafficks in exaggerations and outright fabrications entirely unworthy of his Establishment respectability and his Big Thinker moniker. His conjuring of a fictitious conspiracy against First Amendment religious values as a predicate for a wide-ranging attack on the very independence of the American judiciary is particularly dangerous, and particularly worthy of exposure.

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